Job protections extend to immigrants using false ID, court rules

Retired California Supreme Court Justice Joyce L. Kennard wrote that job-discrimination protections extend even to illegal immigrants who used a fraudulent Social Security number.
(Pool / Getty Images)

California’s legal protections for workers who suffer job discrimination extend to immigrants who illegally use others’ Social Security numbers to get their jobs, the state Supreme Court ruled 5-2 Thursday.

Vicente Salas sued his former employer, alleging that the chemical company had refused to accommodate his disability and rehire him for seasonal work in retaliation for filing a workers’ compensation claim.

Salas had suffered a back injury on the job. His employer, Sierra Chemical Co., got the lawsuit dismissed after discovering evidence that Salas allegedly had used another’s Social Security number when he applied for the job.


An appeals court upheld the dismissal, but the state high court said federal immigration law did not preempt a 2002 state law that protects workers regardless of immigration status.

The worker can sue for back pay up until the time the employer discovered the employee was barred from working under federal immigration law, the court said.

“Although federal immigration law prohibits an unauthorized alien’s use of any false document to get a job, that law does not prohibit an employer from paying, or an employee from receiving, wages earned during employment wrongfully obtained by false documents, so long as the employer remains unaware of the employee’s unauthorized status,” Justice Joyce Kennard, who is now retired, wrote for the majority.

California state law extends all job protections to workers “regardless of immigration status,” the court said.

Justice Marvin Baxter, joined by Justice Ming Chin, partially dissented.

Baxter said federal law bars states from allowing “an employment-ineligible alien who sought or procured the job by submitting fraudulent eligibility documents” from receiving lost pay.

Though the record demonstrated that Salas used another’s Social Security number, it was not clear whether he had entered the country illegally, Baxter said. He said he would send the case back to the lower court to determine Salas’ immigration status.

Christopher Ho, an attorney with the San Francisco-based Legal Aid Society-Employment Law Center, said Thursday’s ruling was one of only a few cases nationwide to address the issue and would likely influence what other courts do in the future.

He said many immigrants who entered the country without permission do not exercise their legal rights out of fear of deportation. Though their attorneys can take actions to protect them, they are not foolproof, he said.

“Basically they have the same rights as anybody else, but the difficulty is how you vindicate those rights as a practical matter when there are all these risks,” Ho said.

Arnold J. Wolf, the attorney for the employer, said he doubted the ruling would have much impact because such cases are rarely brought.

“The notion that someone who is not legally able to work in the United States can maintain a wrongful-failure-to-hire action is to many people absurd,” he said. “I am a a pro-immigration person, but this is the wrong horse to ride. It will engender a lot of antagonism.”

Wolf said no decision has been made on whether to ask the U.S. Supreme Court to review the ruling.

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